Hunter v. M'Auslan, 3 N.C. 366, 2 Hayw. 366 (1805)

Nov. 1805 · North Carolina Superior Court

3 N.C. 366, 2 Hayw. 366

Hunter vs. M'Auslan.

TJ^UNTER repaired the lighters of the defendant, and defeat —“ d.ut drew an oider lor the amount on Gibbs and Barclay, who became bankrupts the day it was drawn. M‘Auslan says he employed Gibbs & Barclay, and that they employed Hunter $ that Hunter was their agent or servant, and that they were liable ’ to him ; and that this order- was only to ascertain the amount,, which they were to pay ; and that there was no consideration, as between Hunter and defendant. Gibbs’s deposition was offered to, prove this statement • audit was objected that he is inadmissible because if Hunter, in consequence of such evidence, should fad, in this action, then Gibbs establishes a right in himself, to claim:, the money from M‘Ansian; for the latter-admits, it was since due to some one ; and if not due to Hunter, it is so to Gibbs 8fc. Jiarclav. If paid by M'Auslan to Gibbs & Barclay already, then, if Hunter recovers, MvAuslan will claim from Gibbs & Bar-, clay what he has paid ; and therefore, it is for the interest of Gibbs that Hunter should not recover.. Suppose A and B make, a race, and C is the stake holder, who admits the money is due-to one of them; and A sues C ; B i.s not admissible, because as. the money is admitted to be due to A or B, it is due to B'if A. should be defeated-. Such a-verdict between A and C could not. be given, in evidence against B,jet B is rejected ; which proves, that a witness may be rejected, although the verdict to be pro-, cured by his evidence, could not be given in evidence for hin&, in another suii. 5- T. SYS is another instance; there the money was due from the acceptor, either to the endorsee or endorser y and the eudorser was not adir»tted to prove the right-to therriQ-r.ty cu!; of the endorsee.

E contra.

Gibbs proves be and Barclay owed and paid the. money to Hunter. If Hunter should not recover against M' Ans-ian, then he will site Gibbs and Barclay, and put"Gibbs to prove as well as he can the payment which he speaks of in his deposition ; and possibly, nay probably, Gibbs will not be able to prove it: Then Gibbs is interested that Hunter should recover in this action | for then he, Gibbs, will not be sued by Hunter. Should Hunter recover against M'Auslan, then it is said, he will sue Gibbs; then if Hunter fails, Gibbs will be sued ; or if he succeed, Gibbs will be sued for the money now in controversy. — It h therefore immaterial to Gibbs whether he fail or succeed. Hut it is not true that Hunter’s recovery will give M'Auslau an action against Gibbs; for if Hunter recovers, and M*Ansian then sues Gibbs, the latter may still say I had a right to receive the money, and am not bound by the verdict and judgment between Hunter and yourself. Gibbs therefore need not fear Hunter’s recoven : he is interested that he should recover. For if l»s then Gibbs will be liable to his action: Gibbs therefore when he swears to prevent Hunter’s recovery, swears against his own interest. Also it is to be further considered, that Gibbs became a bankrupt, and has obtained his certificate; and there is no dividend, nor likely to ba any: the whole of his effects have been taken to pay debts due to the United. States, which have a preference, and there remains not a farthing for other creditors. Neither Hunter nor M‘Auslan can cue Gi'obs, because of his certificate: and if either of them sues the assignee, it canrioi produce a diminution of the funds, because there are no funds s And besides, the assignees supposing they had z fund, would be: liable exactly as Gibbs would be, laying the fcrmkruptcv aside s namely, to Hunter if he fails in this action ; and as they say to she action of M‘Auslan, if he should recover. In either case a diminution to the same amount will take pW.-y and t-e-viore Gibbs is as much interested that Hunter should recover, ss mat lie should not; arid therefore is an admissible y, iir.ess.

Locke, Judge,

after hearing several atgmneutc. Had colleen for the bankruptcy, he would not be a good w.lmcss; because by defeating Hunter, he prevented a suit agai isi himself, and retained in his hands what M‘Auslan paid him s rod because: M‘Ausian being originally liable either to Gibbs or Hume-, mint remain so to Gibbs if Hunter fidls in chía action ; for then no other person can claim but Gibbs. But Gibb.; having obtained his certificate, and ail bis estate having been exhausted in paying the debts due from the United States, a --J there b'k'.g no t'und io the bauds of the assignees to be diminished by ?.TAus-laa’s suit against them ; it seems to me, there should be a new trial; that this part of the case may be belter considered, and that it may be so carefully determined, as to give satisfaction to. the parties concerned.

A new trial ordered.